Health care: Defining the challenge
on Jul 29, 2011 at 3:08 pm
NOTE TO READERS: Yesterday, the blog carried a post on the new petition in the Supreme Court challenging the health care law’s insurance-purchase mandate. In response to a reader’s reaction, the following post outlines more fully the nature of the challenges being raised in Thomas More Law Center, et al., v. Obama (docket 11-117) and clarifies the petition’s arguments.
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Analysis
From the day in late June that the Sixth Circuit Court issued the first appeals court ruling on the constitutionality of the key section of the new federal health care law, that ruling has been fairly widely misunderstood. Even the Justice Department, in its initial reaction, claimed that the Circuit Court had upheld that provision — the mandate that virtually every American must have health insurance by the year 2014. Many news organizations and even some legal analysts, too, drew that conclusion.
But there is a difference between upholding a law’s constitutionality (a ruling declaring that the law is valid) and rejecting a claim that the law is unconstitutional (a ruling that the challenger fell short of proving it invalid).  The latter does not mean the law is valid; it in fact means that the issue is still open, and that the law may yet be struck down.  That is the kind of ruling the Circuit Court issued — and no more than that.  And this difference may be a factor in how willing the Supreme Court may be to hear the first significant health care case to reach it, in a case from Michigan.
In a manner of speaking, the Circuit Court chose the path of judicial restraint — it, in effect, concluded that it would leave for another day the core question of whether Congress had the authority, in late 2009, to impose on most Americans the legal duty to obtain health insurance within three years, or pay a financial penalty. Under this Circuit Court ruling, the law would remain on the books, but new challenges could be brought just as soon as the government actually enforced it, in a real-world setting involving a particular individual unwilling to get health coverage.
What this boils down to, for lawyers and judges, is that the insurance mandate has survived a “facial challenge” even though it has not been upheld constitutionally, but that it may yet prove vulnerable constitutionally to an “as-applied” challenge. So what? Actually, the present Supreme Court is not friendly to facial challenges; it believes they are not the best use of judicial time, and that they may in fact draw the Court into premature rulings on constitutionality.  Better to wait, or so the Court seems to feel, until someone has a genuine, practical grievance that a law is actually harming him in a way that violates his rights.
Strategically, then, an appellate lawyer will be well advised in taking a case to the Supreme Court to frame it — if possible to do so — as an “as-applied” challenge. Thus, the argument: this law is invalid because my client suffers some real harm from its application.  But there is a social cost, or at least a cultural loss, for a lawyer who is pursuing the case as a kind of “cause” — if the lawyer wins the case, the law may only be invalid for that attorney’s particular client, and people exactly like that client. A victory is not as big a deal as a sweeping nullification of the law, essentially wiping it off the statute books.
In going after the new health care provision mandating health insurance, the Thomas More Law Center, it is fair to say, would like to get that section of the law wiped off the books. Its petition for review in the Supreme Court, filed on Wednesday, raises, as its first question, a broad “facial” challenge: the law, as it emerged from Congress, was far beyond the lawmakers’ authority, and thus could never be enforced, against anyone.
That is the way the advocacy group pursued its challenge in U.S. District Court in Michigan, and the federal District judge rejected that sweeping challenge. He found, in fact, that the insurance mandate was within Congress’s powers under the Commerce Clause, and thus could be enforced. People actually would have to have health insurance by 2014, or pay a penalty to the IRS when they filed their tax returns.
Before the Circuit Court held argument on the Law Center’s appeal, it asked the lawyers to answer a few questions posed on behalf of the three judges on the Circuit panel. Among them was an inquiry into whether the Law Center was making a “facial” challenge, and, if so, what it had to prove.  In a brief filed by the Law Center, it said it was making both kinds of challenge, “facial” and “as-applied,” although it argued that this distinction was “of little moment.” (That brief can be found here; the discussion of the nature of the challenge starts at the bottom of page 8.)
Because Congress was attempting to force its individual clients to obtain health insurance, when they do not want it, the brief said, “this case could properly be viewed as an ‘as-applied’ challenge.” But, in keeping with its point that the distinction did not matter much, it went on to put most of its argument on the “facial” complaint. “If Congress lacked the authority to enact certain legislation, such as the Individual Mandate, that legislation adversely affects everyone in every application,” the brief went on. This case, it said in conclusion, “presents a purely legal question.”
And that same broad argument is made in the Law Center’s petition to the Supreme Court, in support of its first question presented to the Court — the “facial” challenge. That is all, technically, that is before the Justices, because that is the only challenge the Circuit Court rejected — a point that the Law Center acknowledges. (It has to be understood that the finding that the “facial” challenge had failed can be found only in the concurring opinion of Circuit Judge Jeffrey S. Sutton, but that position straddles the position of the two other judges on the panel, so it is controlling. Judge Sutton found that the Law Center had not proven that there were no circumstances under which the law could be validly enforced, so the “facial” challenge was found to be wanting.)
Even so, the Law Center has added the second question, to preserve its option of asking the Court to strike down the law as it would apply to the Law Center’s clients. The petition buttresses its point mainly by relying upon its pre-argument brief in the Circuit Court, spelling out why its clients were among Congress’s targeted audience.  That part of its argument, it might be noted, takes up only a little more than three pages in a 28-page petition. The Law Center’s legal heart, of course, is in the broader challenge; but it has left itself a lesser argument — though that is one that might have a better chance before the Justices.
